Merrick John Gallien v. State of Texas

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-01-182 CR ____________________ MERRICK JOHN GALLIEN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 81680 O P I N I O N Merrick John Gallien pleaded guilty without a plea agreement to aggravated sexual assault of a child. The trial court sentenced Gallien to sixty years' confinement in the Texas Department of Criminal Justice, Institutional Division. Gallien filed a motion for reconsideration of sentence. Following a hearing, the trial court granted the motion and entered a judgment nunc pro tunc reducing the sentence to thirty years. Gallien appeals claiming he received ineffective assistance of counsel. In his brief, Gallien acknowledges he was properly admonished at the time he pleaded guilty. Below, Gallien was represented by two different attorneys. His attorney did not appear at the plea hearing, another attorney stood in for him. That attorney was also standing in at the sentencing hearing. At that hearing, Gallien indicated he wished to withdraw his guilty plea, the trial court refused to permit it. The trial court continued the sentencing hearing until the afternoon when Gallien's counsel could attend. At the continued hearing, counsel stated it was not Gallien's desire to withdraw his plea. Gallien answered, "No" when asked by the trial court if he desired to withdraw his plea. On appeal, he contends counsel below "failed to investigate issues brought to light by the pre-sentence report." (1) Specifically, that Gallien failed his literacy test, and scored one of the lowest scores on the Static 99 (the test to determine the risk of re-offending). Also, that Gallien suffered a head injury which may have affected his memory at or near the time he was questioned by the police. Appellate counsel argues that once the issue of the head injury arose, counsel had a duty to investigate it. These issues were all raised by the attorney standing in for Gallien's counsel during the sentencing hearing. Once the hearing was continued, Gallien's counsel appeared but did not raise any of these issues. The only evidence offered by Gallien's counsel was the testimony of the victim's grandmother. Appellate counsel contends: It appears plainly from the record that the two attorney's did not communicate properly to the detriment of their client. It also appears that the pre-sentence report was not reviewed until the day of sentencing. The hearing on the Motion for Rehearing or New Trial reflects that trial counsel was not aware of several factors in the report until having an opportunity to review the report at length. After having this opportunity, the record does not reflect that any of these avenues were explored. We find the record supports counsel's contentions. At the hearing on the Motion for Rehearing or New Trial, Gallien's counsel contended the sentence was too harsh because of: (1) Gallien's lack of criminal history, and (2) the substantial family support that Gallien has available. Counsel said he "did not learn until we came up for sentencing" that Dr. Coxe had evaluated Gallien. Counsel felt the evaluation "was very detrimental to my client in the presentence investigation report and I had no way to rebut it." Counsel also told the court he was not aware that Gallien failed his adult basic literacy test as performed by the adult probation department, though it was clearly stated in the presentence investigation report. Counsel stated that as he was not present when Gallien signed his plea papers, he could not testify to the court that those papers were completely read to Gallien, or that he understood exactly what it was that he was signing. However, counsel also stated "that under different circumstances that plea may have been done somewhat differently, although I do still anticipate that the plea would have been entered." To be ineffective, counsel's performance must fall below an objective standard of reasonableness under prevailing professional norms and there must be a reasonable probability that but for counsel's deficient performance the result of the proceeding would have been different. Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997). Allegations of ineffective assistance will only be sustained if they are firmly founded in the record. Sandles v. State, 887 S.W.2d 252, 254 (Tex. App.--Beaumont 1994, no pet.). Although there appears to be no acceptable explanation for trial counsel's failure to be aware of issues raised in the presentencing investigation report, particularly since the attorney standing in for him was aware of them, we cannot say, on the record before this court, that "but for" that lapse the result would have been different. The report is not part of the appellate record, thus we cannot verify its damaging nature. Further, there is no evidence in the record that it would have been possible to rebut Dr. Coxe's evaluation. Gallien was orally admonished, the trial court did not rely solely upon written admonishments. The trial court did reduce Gallien's sentence in half; the record does not reflect the reasons. Considering the whole, we are unable to conclude that but for counsel's deficient performance, the outcome would have differed. Point of error one is overruled. The judgment of the trial court is AFFIRMED. PER CURIAM Submitted on March 4, 2002 Opinion Delivered March 13, 2002 Do not publish Before Walker, C.J., Burgess, and Gaultney, JJ. 1. The presentencing investigation report is not part of the record on appeal.